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State v Toduadua [2017] FJHC 369; HAC362.2015 (22 May 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 362 of 2015

[CRIMINAL JURISDICTION]

STATE

V

1. SEKOPE TODUADUA
2. JAMES NETANI
3. JOSESE RAINIMA TAWAKE
4. NETANI TAKELO
5. SEKOPE SIVODUADUA TODUADUA
   

Counsel : Ms. J. Fatiaki for the State

Ms. P. Lal for 1^st Accused

Ms. C. Choy for 2^nd Accused

Mr. P. Tawake for 3^rd Accused

Ms. S. Prakash for 4^th Accused

Ms. A. Prakash for 5^th Accused
Hearing on : 8^th – 17^th May, 2017
Summing up on : 19^th May 2017
Judgment on : 22^nd May 2017

JUDGMENT

1. The accused persons are charged with the following offence;
   

Statement of Offence

MANSLAUGHTER: contrary to section 239 of the Crimes Decree 2009.

Particulars of Offence

SEKOPE TODUADUA, JAMES NETANI, JOSESE RAINIMA TAWAKE, NETANI TAKELO AND SEKOPE SIVODUADUA TODUADUA on the 26^th of November 2014 at Nadonumai, Lami in the Central Division unlawfully killed Savenaca Masi.

2. The majority opinion of the assessors is that all accused are not guilty of the above offence. One assessor opined that the 1^st, 2^nd and the 5^th accused persons are guilty as charged.
   
3. I direct myself in accordance with the summing up delivered to the assessors on 19^th May 2017 and the evidence adduced during the trial.
   
4. The prosecution relied on the principle of joint enterprise. The prosecution alleges that the five accused persons formed a common intention to prosecute an unlawful purpose and the offence of manslaughter was committed in the prosecution of the said unlawful purpose.
   
5. The prosecution case was that; all five accused chased the deceased; the 2^nd, 3^rd and the 5^th accused persons kicked and punched the deceased when the deceased fell after the 1^st accused kicked the deceased’s leg in the vicinity of Sikeli’s (PW4) house; the 4^th accused was encouraging the others to assault the deceased by saying ‘dou vakamatea’; PW4 intervened and stopped the fight; then the deceased was taken to the driveway; thereafter the 1^st accused punched the deceased as a result of which the deceased fell on the ground and hit his head; the other accused persons were present at the scene while this happened and the 1^st accused’s punch was a substantial contribution to the death of the deceased.
   
6. According to the prosecution, the death of the deceased was caused by the conduct of the 1^st accused and that conduct is punching the deceased on the face. The 1^st, 3^rd and 6^th witnesses for the prosecution testified that they saw the 1^st accused punch the deceased and then the deceased fell backwards. However, the 1^st, 2^nd and 4^th witnesses giving evidence in relation to the previous incident said that they saw the 1^st accused covering and protecting the deceased when others were trying to punch the deceased. According to the evidence, the 1^st accused received the punches from the others in his attempt to protect the deceased. This evidence clearly suggests that the intention of the 1^st accused at this point in time was to protect the deceased.
   
7. Then, the question is, what made the 1^st accused change his attitude towards the deceased subsequently to punch the deceased either with the intention or being reckless as to the risk that that punch will cause serious harm to the deceased? The conduct of the 1^st accused immediately after the deceased fell down indicates that the 1^st accused was concerned about the wellbeing of the deceased. That evidence is not consistent with the conduct of a person who had the intention to cause serious harm to the deceased.
   
8. The position taken by the 1^st accused is that he never punched the deceased. According to the 1^st accused, the deceased fell down because the deceased could not control his balance as the deceased was heavily drunk. It was pointed out on behalf of the 1^st accused that the prosecution witnesses who said they saw the 1^st accused punch the deceased are mistaken about what they saw. The 1^st accused takes up the position that the prosecution witnesses had perceived the movement of his hand to block an attack from the deceased, as a punch.
   
9. It is pertinent to note that according to the 1^st, 3^rd and 6^th prosecution witnesses who testified that the 1^st accused punched the deceased, had witnessed the event from a lower elevation and from a position behind the 1^st accused. They have apparently seen a movement of the 1^st accused’s hand and the deceased falling at the same time. Therefore, considering the evidence in this case, I cannot rule out the possibility that the aforementioned prosecution witnesses may have mistakenly perceived the movement of the 1^st accused’s hand to block an attack from the deceased, as a punch. There is a reasonable doubt in this regard.
   
10. On the other hand, even if the 1^st accused did punch the deceased, the available evidence does not suggest that the 1^st accused had the intention to cause serious harm to the deceased or the 1^st accused was reckless as to the risk that his conduct will cause serious harm to the deceased.
    
11. Therefore, considering all the evidence in this case, I am not satisfied beyond reasonable doubt that the 1^st accused engaged in a conduct with the intention or being reckless as to the risk that the said conduct will cause serious harm to the deceased.
    
12. In this case, it was suggested on behalf of the 1^st accused that the deceased had fallen in the bathroom before the deceased was taken to the hospital. The defence challenged the evidence of the 7^th witness for the prosecution who was the only witness to give evidence on the time the deceased was taken to the hospital. She said that the deceased was taken to the hospital around 4.00pm the same day. Considering the inconsistencies noted in her evidence and her own admission that she had forgotten everything because the incident happened 3 years ago, the 7^th prosecution witness’ evidence appeared unreliable. In my view, the medical evidence adduced in this case did not clearly and properly explain the nature of the injury sustained by the deceased as a result of the fall on the driveway. Therefore, the evidence to support the position that the said injury substantially contributed to the death of the deceased, was also not convincing.
    
13. In the circumstances, I am of the view that the evidence available in this case is not sufficient to prove beyond reasonable doubt that the 1^st accused committed the offence of manslaughter. It follows that the 1^st, 2^nd, 3^rd and 4^th accused persons are also not guilty of the offence of manslaughter.
    
14. For the reasons given above, I agree with the majority opinion of the assessors.
    
15. I find all five accused persons not guilty of the offence charged. They are acquitted accordingly.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitors for the Accused : Legal Aid Commission, Suva.